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I’ve written here about the difficult position an employer/organization is placed in when its employees are harassed by “outsiders.” On July 20th the Court of Appeal for Ontario illustrated the difficulty by affirming a decision that denied relief from such harassment that a municipality (and its mayor) sought on behalf of the mayor, councillors and staff. The decision suggests that an employer’s duty to provide a safe and harassment free environment provides no basis for a civil remedy.

We all know that, on Wednesday, a 7-2 majority of the Supreme Court of Canada affirmed an order that required Google to de-index the websites of a company who was using the internet to sell the intellectual property of another company – an order against a non-party with global effect. The case – Google v Equustek – is about rule of law in internet days and about doing what can be done about internet-based harm and not throwing hands up or letting romantic ideas about the internet and expression interfere.

After reading the case I tweeted these words and promised follow up. In keeping with my custom I’ll keep it short, in part by giving reference to an editorial by Neil Turkewitz in The Hill in which he applauds the Equustek decision. Mr. Turkewitz explains that the majority decision is a sensible response to arguments based on the “theory of cyber-libertarian ideology” that has been embraced by internet companies and freedom of expression advocates alike:

The decision in Equustek doesn’t answer all questions, and courts and policy makers globally will need to continue to closely examine the proper scope of national jurisdiction with respect to conduct that impacts multiple jurisdictions. Indeed, as I’ve written before, “I’m not unsympathetic to Google’s concerns. As a player with a global footprint, Google is legitimately concerned that it could be forced to comply with the sometimes-oppressive and often contradictory laws of countries around the world. But that doesn’t make it — or any other Internet company — unique. Global businesses have always had to comply with the rules of the territories in which they do business … There will be (and have been) cases in which taking action to comply with the laws of one country would place a company in violation of the laws of another. But principles of comity exist to address the problem of competing demands from sovereign governments.”

Mr. Turkewitz is saying that we cannot relax our laws for internet players like Google – especially given its role in an “internet of Backpage, of ISIS recruitment, of cyber-bullying, of phishing, of ransomware and revenge porn, of cyber-espionage, of trafficking in counterfeit and pirate content.” The majority of the Court did agree, with Justice Abella stating “The answer turns on classic interlocutory injunction jurisprudence” as if to say, “What’s the problem here?”

The only other point I’ll raise is about the dialogue between majority and minority about necessity and efficacy. The majority believed the order to be necessary and effective and the minority did not, neither side spending any time explaining the divergence. Here is the statement that encapsulates the minority view:

The most that can be said is that the Google Order might reduce the harm to Equustek which Fenlon J. found “Google is inadvertently facilitating” (para. 152). But it has not been shown that the Google Order is effective in doing so. As Google points out, Datalink’s websites can be found using other search engines, links from other sites, bookmarks, email, social media, printed material, word-of-mouth, or other indirect means. Datalink’s websites are open for business on the Internet whether Google searches list them or not. In our view, this lack of effectiveness suggests restraint in granting the Google Order.

Given our courts are charged with protecting rule of law and given the impossibility of totally controlling the internet, this statement is downright depressing. Very simply, we must have resort to harm reduction because it is all we will ever have. Without harm reduction, we have no rule of law.

On April 17, Justice Broad of the Ontario Superior Court of Justice issued a permanent injunction against a privacy and defamation defendant who he said engaged in a vitriolic campaign to discredit the plaintiff and her father – victims of a violent attack and hostage taking in which the plaintiff’s eight-year-old son was killed by the defendant’s brother-in-law.

A jury found in the plaintiffs’ favour and awarded damages in an amount that has not been published. Justice Broad issued a permanent injunction – an extraordinary remedy – because there was a real possibility that the plaintiffs would not receive any payment. He reasoned:

A possibility means a chance that something will happen, and a real possibility connotes a possibility that is not speculative or lacking in support. It is axiomatic that past behavior can act as a indicator of future behavior. In my view Richard Chmura’s failure to pay the outstanding costs awards, dating back up to more than four years ago, provides a sufficient basis for a finding that there is a real possibility that Julie Craven and John Craven will not receive any compensation, given that enforcement against Mr. Chmura of the damage award may not be possible. The test for the issuance of a permanent injunction preventing any continued or repeated publication of libelous statements about Julie Craven and John Craven has therefore been satisfied.

Last Thursday, the Court of Appeal for British Columbia issued an important decision about the power of a domestic court to make orders against non-party, internet “intermediaries” – in this case, search engine provider Google.

The matter involved an order made to help a network hardware manufacturer enforce its intellectual property rights against a former distributor who had gone rogue. After the plaintiff sued the former distributor, it went underground – essentially running a “clandestine” effort to pass off its own products as the plaintiff’s products. This scheme relied on the internet and, to a degree, Google’s market-dominant search engine.

Google voluntarily took steps so searches conducted at the Google.ca search page would not return specific web pages published by the defendants. The plaintiffs sought and obtained an order to block entire domains and to block searches originating from all jurisdictions. Google appealed, making a number of broad arguments about the impact of the order (and its kind) on comity principle of private international law as well as international (internet-based) freedom of expression.

The Court of Appeal dismissed Google’s appeal, demonstrating significant sympathy for the perils facing the British Columbia plaintiff. And while the Court was sensitive to the principles raised by Google (along with the Canadian Civil Liberties Association and the Electronic Frontier Foundation as interveners), it held that the principles were not engaged in the matter:

… Courts should be very cautious in making orders that might place limits on expression in another country. Where there is a realistic possibility that an order with extraterritorial effect may offend another state’s core values, the order should not be made.

In the case before us, there is no realistic assertion that the judge’s order will offend the sensibilities of any other nation. It has not been suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.

This reasoning by the Court of Appeal relates back to a significant admission by Google – an admission recorded by the chambers judge as follows: “Google acknowledges that most countries will likely recognize intellectual property rights and view the selling of pirated products as a legal wrong.”

The Court of Appeal decision is therefore relatively balanced. In general, it will help those seeking civil remedies deal with global internet intermediaries such as Google. However, global search engine “takedown orders” of the kind issued in this case will not necessarily be easy to obtain and enforce.

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